Budget Balancing Act
Would a constitutional convention undo everything…or accomplish nothing?
Supporters of a constitutional convention to write a balanced-budget amendment won a small victory in New Orleans last summer. As in 1984, the 1988 Republican platform urged that if Congress keeps blocking such an amendment, the states should call for a constitutional convention on the subject.
The proposal also posted a gain of sorts in Atlanta. In 1984, the Democrats forthrightly opposed both the amendment and the convention call. Their 1988 platform, though, said nothing about the issue. It merely stated that government "must provide the resources" to pay for social programs. (What do they mean by "resources"—raisins, dates, and hazelnuts?)
Elsewhere, the convention call is having hard times. In a number of state legislatures, lawmakers have introduced resolutions to rescind their states' previous support for a convention call. During 1988, such resolutions passed in Florida and Alabama. In the year ahead, supporters of the convention call will fight for its approval in several states, including New Jersey, Michigan, Minnesota, and West Virginia. Opponents will seek to block these efforts and, if need be, persuade more legislatures to backtrack.
Yet it's obvious to nearly everyone that federal overspending cannot go on. So what's all the fuss about?
The United States has not had a national constitutional convention since 1787. Calling a new one requires support from 34 states; a convention to write a balanced-budget amendment has won in 32 legislatures. If the Florida and Alabama rescissions prove valid—scholars disagree on whether a state can "take back" endorsement of a convention call—the number drops to 30.
Opponents of the idea range all over the ideological map. Some social conservatives hold that a convention could stray beyond its charter and write language threatening, for example, the right to worship. Social liberals worry that it could create a national religion. Lawrence Tribe fears a convention full of supporters of Phyllis Schlafly, who fears a convention full of Lawrence Tribes.
Supporters of the convention call, led by the National Taxpayers Union, say that's far-fetched. But they should think hard about a contrary danger: that the convention would produce not Frankenstein but Gumby. Instead of crafting an airtight lid on federal spending, it could well write a boneless document full of loopholes.
Before considering why the whole effort might flop, look at the "runaway convention" argument. With some variations in wording, the states' applications would limit the proposed convention to writing a balanced-budget amendment and nothing else. Some scholars argue that such curbs could not bind the convention: once assembled, it could propose whatever amendments it wanted. After all, the first constitutional convention turned into a runaway. In 1787, Congress instructed the delegates to meet to revise the Articles of Confederation, but once they reached Philadelphia the delegates scrapped the Articles and started over.
The result is generally deemed a happy ending. Opponents of a new convention warn that we wouldn't be so lucky again. Sen. Patrick Leahy (D–Vt.) is typical: "Nothing—not our first amendment rights of freedom of speech, freedom of religion, not our rights against search and seizure—none of the rights in the Constitution would be off limits. They all would be susceptible to revision. And I fear that the rights we take for granted could be the first to go."
Until a runaway happens and the Supreme Court rules whether it overstepped its bounds, legal questions about limiting a convention's work will remain open. But suppose the worst: a convention proposed repealing the First Amendment, and the Supreme Court refused to step in. Three-fourths (38) of the states would still have to ratify the change. And ratification would surely crash into the roadblock of public opinion.
Even in the unlikely event that a majority favored such a radical shift, it would still face tall odds. The Founders built a ratification process that enables a dedicated minority to thwart a hot-headed majority. Just 13 states, with as little as 3 percent of the population, could scuttle the new provision. Opponents would have an even easier time if Congress sent the amendment to state legislatures instead of special state conventions. (Only the 21st Amendment, repealing Prohibition, was ratified by special conventions). Except in unicameral Nebraska, both chambers of a state legislature must vote to ratify, so opponents would have to get only 13 of 99 state legislative houses to withhold approval. They wouldn't even need a majority in those 13 houses; merely blocking a vote would have the same effect.
With such a low threshold, opponents could win. Ponder the fate of the Equal Rights Amendment, a less drastic measure. In spite of presidential support and polls showing wide approval of the ERA, its foes mustered enough clout in enough statehouses to kill it.
It might seem that most legislatures balk at enlarging civil liberties (as some claim the ERA would have) but would eagerly take them away. The evidence suggests otherwise, however. Thirty-five legislatures supported the ERA, and it's hard to see them voting to repeal the First Amendment.
Another response concedes the improbability of these horror stories but argues that the stakes are so high that we cannot even afford a small chance. Advocates of a convention belittle this argument. Under Article 5, Congress may propose amendments at any time, without calling a convention. Since Congress has had nearly 200 years to hatch evil amendments, ask convention supporters, why haven't we seen any?
Opponents counter that Congress has produced some rotten constitutional amendments, including numbers 16 (the income tax) and 18 (Prohibition). And if lawmakers did not have to face reelection, they would probably write new ones requiring taxpayer-funded Jacuzzis in every Capitol office. And no electoral discipline would apply to convention delegates. They would run only once and so would have even greater freedom to act irresponsibly.
This may be the strongest case for believing the runaway-convention fears. It seems much more likely, however, that if a convention took a wrong turn, it would be toward timidity, not tyranny.
In drafting a balanced-budget amendment, the delegates would confront many temptations to weaken it. Everybody who gets special benefits from the federal government would fight to exempt his or her own program from the lid. And all of the beneficiaries would favor "escape clauses" allowing Congress to lift the lid in case of such national emergencies as poor surfing conditions or excessive reruns of "I Love Lucy."
Whether the convention bowed to such pressures would depend on its makeup. If the delegates were public-spirited defenders of economy and limited government, it would probably try to write a rat-proof amendment. But with enough special-interest pleaders, it would surely cook up rat pudding.
Apportioning and choosing delegates becomes crucial. Article 5 of the Constitution says nothing on the issue, so Congress and the state legislatures would have to decide. Under a bill proposed by Sen. Orrin Hatch (R–Utah), apportionment would follow the Electoral College formula: each state's delegation would equal the number of its senators and House members. This would nod to the one-person-one-vote principle but also give an edge to the smaller states. Some may consider them fiscally conservative, so that this formula would foster a tight amendment. But the six leaders in per capita state spending are Alaska, Wyoming, North Dakota, Delaware, Hawaii, and New Mexico—all small states.
Senator Hatch's bill would let each state decide how to choose its delegates. He favors popular election but does not think Congress should specify particulars—and many scholars believe that Congress lacks constitutional authority to do so.
Some state legislatures might opt to appoint delegates. Consider the incentives under this arrangement. For many lawmakers who said aye to a convention call, the vote was a "freebie," a way to strike a pose for a balanced federal budget without taking any real action. But as the amendment moved closer to reality, new considerations would come into play. A strict balanced-budget requirement could slash federal aid and force state lawmakers to either cut spending or raise taxes. Seeking to duck that choice, they would want convention delegates to favor a weak amendment and would choose delegates accordingly.
Does this scenario take too harsh a view of state lawmakers? No doubt hundreds of them sincerely oppose "big government." Between 1970 and 1985, however, total state spending (minus federal aid and inflation) rose 60 percent. In Albany as in Washington, politics is survival of the fattest.
Popular election of delegates doesn't look any better. Although a balanced budget would benefit the country as a whole, those blessings would amount to scant personal benefit when split among 245 million Americans. The average citizen would have little material incentive to vote in delegate elections, much less work in a delegate campaign. By contrast, the costs of a balanced budget would fall hard on those who enjoy special federal benefits. Their big stake in the outcome would drive them to act. In delegate elections, those most likely to participate would be those most likely to back foes of a strong balanced-budget amendment.
Prospects for an ironclad amendment would also suffer from the mode of election. Except in small states, at-large races would be impractical; delegates would run by congressional district. Several states have gerrymandered their districts to elect big spenders, so opponents of a strong amendment would enjoy a head start. More important, many congressional districts rely on federal pork barrels such as water projects and military bases. People running for convention delegate would pledge to support austerity—except for programs that bring local bounty.
Advocates of an amendment with teeth could try public education and get-out-the-vote efforts. But federal beneficiaries have their own firepower: the American Association of Retired Persons has 18 million members; the National Education Association, 1.7 million. Such groups could show strength in every congressional district in the country. Fiscal conservatives can hardly make the same claim. Business organizations, despite their green-eyeshade reputation, would probably not shed blood for a balanced-budget amendment. Austerity would hurt the thousands of firms that do business with Uncle Sam. Ideological groups may have long mailing lists and busy offices in Washington, but so far they lack state-level organizations to match the pro-spending forces.
That might be changing. In California, Minnesota, and other states, free-market groups are starting to nourish the parched grass roots of economic conservatism. Besides, say advocates of the convention call, we should ultimately trust the people. Despite the scare-mongering opposition of special-interest groups, the people voted for Proposition 13 in California and Proposition 2½ in Massachusetts. Given a fair chance, the argument goes, the people will pick delegates who really want to curb spending.
Whatever its makeup, the convention would adopt its own rules of procedure. And spenders are adept at rigging the game. For example, by crafting rules that limit amendment and debate, the House leadership has steamrollered billions of dollars into the budget. Wanting instant passage of a tax hike in the fall of 1987, Speaker Jim Wright faced the hurdle of a one-day procedural waiting period. No problem—he simply had the House declare a whole new day. Wright and his henchmen would happily teach like-minded delegates how to pull similar tricks. So if a convention does take place, a word of warning to supporters of limited government: fight hard on procedure. The spenders will play J.R. Ewing, so don't get caught in the role of Cliff Barnes.
Yet, although a convention might well flop, the congressional route is hardly a better bet. Unless the House ousts Wright for ethical violations—which would be like a bawdy-house firing the madam for promiscuity—he will reign for years and continue to block anything resembling fiscal sanity. And even if Congress did write and approve a balanced-budget amendment, it would probably leave out the teeth. Witness how Congress exempted half the budget from the Gramm-Rudman knife. So despite all its dangers and pitfalls, the convention route still deserves serious attention from supporters of a balanced-budget amendment.
Any path to a more-limited government and lower spending will carry its share of hazards, because the forces of big government know how to fight. The answer is to learn how to fight back. Adam Smith offers one kind of insight, Machiavelli and Sun Tzu another.
John J. Pitney, Jr., is an assistant professor of government at Claremont McKenna College.
This article originally appeared in print under the headline "Budget Balancing Act".